1. The appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 2.8.2004, passed by the Court of learned District Judge, Solan, District Solan, H.P. (hereinafter referred to as 'the First Appellate Court'), in Civil Appeal No. 7-S/13 of 2003, titled as, 'Om Parkash & others versus Hamendra Singh & others'.

2. Vide judgment and decree, dated 2.8.2004, the learned First Appellate Court has allowed the appeal, preferred by Om Parkash and others, against the judgment and decree, dated 9.10.2001 passed by the Court of learned Sub Judge, Kasauli at Solan, Distt. Solan, H.P. (hereinafter referred to as 'the learned trial Court'), in Civil Suit No. 719/1 of 1999/96, titled as, 'Hemendra Singh & others versus Om Prakash & others', whereby, the learned trial Court has decreed the above titled suit.

3. Vide judgment and decree, dated 2.8.2004, while allowing the appeal, the learned First Appellate Court has granted the following relief:

"In view of the findings on issue No. 1-B and point No. 1 as recorded hereinabove, the appeal is accepted, the judgment and decree under appeal are set-aside and consequently the suit of the respondents-plaintiffs is dismissed with costs as also of the appeal. Decree sheet be drawn accordingly. Trial Court's records be returned with a copy of this judgment. Record be completed and consigned to the record room."

4. As stated above, the aforesaid appeal was filed against the judgment and decree, dated 9.10.2001, passed by the learned trial Court in Civil Suit No. 719/1 of 1999/96, and granted the following relief:

"The cumulative effect of my above discussion and explanation on issue No. 1 to 4 is that the suit of the plaintiff succeeds and the same is hereby decreed accordingly with cost. It is held that plaintiffs are the owner of the land comprised in khasra No. 97/86/22 measuring 6 bighas 9 biswas comprised in khata No. 3/3 situated at village Datyar Delhi Tehsil Kasauli, District Soland and the name of the defendants was wrongly been entered in the revenue record after 1961-62 without any basis and without the knowledge of the owners. Hence the revenue entries showing the name of the defendants in the column of possession are wrong, illegal, null and void and not binding upon the plaintiffs. It is also held that the possession of the defendants over the suit land is unauthorized and the plaintiffs are entitled for the decree of possession. Decree sheet be prepared accordingly. The file after due completion be consigned to the general record room."

5. For the sake of convenience, the parties, to the present lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.

6. Brief facts leading to filing of the present appeal, before this Court, may be summed up, as under:

The plaintiffs have filed the suit for declaration to the effect that they are owners in possession of the land comprised in khasra No. 97/86/22, measuring 6 bighas 9 biswas, comprised in Khata No. 3/3, situated in village Datyar Delhi, Tehsil Kasauli, District Solan, (hereinafter referred to as 'the suit land') as per Jamabandi for the year 1990-91. The entries, in the name of defendants, are stated to have wrongly been entered in the revenue record after 1961-62, without any basis and without any knowledge of the owners. Alternatively, possession of the said land, has also been sought in case, the defendants claim possession on the basis of wrong entry.

6.1 In addition to this, relief of perpetual injunction restraining the defendants from changing the nature of the land and raising construction over the suit land, has been sought.

6.2 These reliefs have been sought by the plaintiffs on the ground that they are owners of the suit land, which was previously owned and possessed by Krishna Devi, mother of the plaintiffs. The suit land was in the possession of the owners alongwith the other land and the said possession and ownership continued till now, but, the plaintiffs came to know in the month of September, 1996 that the name of the defendants has been entered in the column of possession as "Bila Lagan Bawajah Bai".

6.3 It is the specific case of the plaintiffs that the possession has never been handed over to the defendants, by any person. It has further been pleaded that Krishna Devi had expired in July, 1982 and neither any sale had ever taken place nor any mutation of sale, was entered or attested. According to them, the Revenue Agency has changed the entries without any basis or without any deed of transfer and mutation. Said entries are stated to be illegal, null, void and inoperative and not binding upon the rights of the plaintiffs.

6.4 In order to set up their case, the plaintiffs have pleaded that name of Virendra Singh had wrongly been entered in the revenue record as Devinder Singh and it was again corrected as Virendra Singh @ Devinder Singh. This fact came to notice of the plaintiffs, in the month of September, 1996, whereas, name of defendants got entered in the revenue record, i.e. Jamabandi, for the year 1965-66. The estate of Smt. Krishna Devi was mutated in the name of plaintiffs, vide mutation No. 561, dated 29.12.1982. Cause of action is stated to have been accrued from the knowledge of the wrong entries in the month of September, 1996 at Village Datyar Delhi, when, the interference was made by the defendants.

6.5 On the basis of above facts, the plaintiffs have also sought the relief that in case, the defendants succeed in forcibly occupying the suit land, on the basis of wrong entries, then, relief of possession, in alternative, be also granted to them.

6.6 On the basis of above, a prayer has been made to decree the suit, as prayed for.

7. When, put to notice, the suit has been contested by the defendants, by filing written statement, in which, they have taken preliminary objections that the plaintiffs have suppressed the material facts with the ulterior motive to get undue advantage; the plaintiffs are estopped from their own acts and conduct to file the suit and; the suit is stated to be barred by limitation, as, by way of the suit, the plaintiffs have challenged the revenue entries of 1965-66.

8. On merits, the suit has been contested by denying the stand, upon which, relief has been sought by pleading that the plaintiffs are not residing in Mauja Datyar, nor, they are owners in possession of the suit land. However, it has been admitted that the suit land was previously owned by Krishna Devi, but, she had sold the land to the father of the defendants. Other contents have also been denied, by taking the plea of oral sale, which according to the defendants, had taken place, many years ago and after that, possession of the suit land was handed over to the father of the defendants. Asserting the fact that the oral sale was permissible in the area, it has been prayed that the suit may kindly be dismissed.

9. The defendants have also taken the plea that they are in possession of the land, for more than 33-34 years approximately as owners, openly, peacefully, continuously, and without any obstruction, hindrance, from any corner to the knowledge of the plaintiffs.

10. All these facts have been asserted to show that now, they have become owners of the suit land, by way of adverse possession.

11. From the pleadings of the parties, the following issues were framed by the learned trial Court, on 2.11.1999:

"1. Whether the plaintiffs are owners in possession of the suit land comprised in khasra No. 97/86/22 measuring 6 bighas 9 biswas presently displayed as Khata No. 3/3 as allegedOPP

2. Whether the names of the defendants were wrongly entered in the revenue record 1961-62 OPP

3. Whether the plaintiffs are entitled for the relief, as prayed OPP

4. Whether the plaintiff have suppressed material facts from the Court OPD

5. Whether the plaintiffs are estopped by their own acts, conduct, deeds and acquiescence from filing the present suit, as alleged/OPD

6. Whether the suit is not within limitation, as alleged OPD

7. Whether the plaintiffs have no right, title or interest over the suit land, as alleged OPD

8. Relief."

12. Thereafter, parties to the lis were directed to adduce evidence. After closure of evidence, the learned trial Court heard the learned counsel appearing for both the parties and decreed the suit of the plaintiffs, vide judgment and decree, dated 9.10.2001.

13. Aggrieved from the said judgment and decree, passed by the learned trial Court, the defendants have preferred the appeal, under Section 96 of the CPC, before the learned First Appellate Court. During pendency of the appeal, before the learned First Appellate Court, the following additional issues were framed, vide order dated 31.3.2004:

"1-A Whether the appellants/defendants have acquired title to the suit property under an oral sale as allegedOPA/D

1-B If issue No. 1 is not proved, whether the appellants/defendants have become owners of the suit property by adverse possession as claimed OPA/D."

14. Parties to the lis were directed to adduce the evidence on these issues. Thereafter, the above issues were decided and after hearing learned counsel for the parties, the appeal was accepted and suit of the plaintiffs, has been ordered to be dismissed with costs.

15. Aggrieved from the said judgment and decree, plaintiffs, have preferred the present appeal, before this Court. The judgment and decree, passed by the learned First Appellate Court has been assailed, on the ground that the learned First Appellate Court has wrongly held that defendants have failed to prove the permissibility of the oral sale, and committed error of law in holding that there was invalid transaction in favour of defendants.

16. According to the appellants, the learned First Appellate Court has confined its findings, on additional Issue No. 1(b), and has not touched the findings, rendered by the learned trial Court, on issues No. 1 to 7.

17. The judgment and decree, passed by the learned First Appellate Court has also been challenged on the ground that the observations of the learned First Appellate Court that the plaintiffs have not challenged the findings of the learned trial Court, by filing cross-objections, are illegal, erroneous and perverse, as according to the appellants/plaintiffs, the suit of the plaintiffs, was decreed, as such, there was no occasion for them to challenge the findings of the learned trial Court, regarding their unauthorized possession.

18. The findings of the learned First Appellate Court have further been assailed on the ground that the learned First Appellate Court has wrongly presumed the factum of oral sale, without there being any evidence.

19. The other ground to assail the findings of the learned First Appellate Court is that the learned First Appellate Court has wrongly held that the defendants came into possession of the suit land, under an invalid transaction of transfer, whereas there is no evidence on record to probabilize the said fact. The learned First Appellate Court is stated to have wrongly held that since the defendants continued in possession for more than 12 years, after invalid sale, as such, they have become owners of the suit land. These findings are stated to be erroneous, as according to the appellants-plaintiffs, there is nothing on record to show as to when the said alleged sale transaction took place.

20. On the basis of above facts, Mr. Bhupender Gupta, Senior Advocate, assisted by Mr. Pranjal Munjal, Advocate, has prayed that the appeal may kindly be accepted, by setting aside the judgment and decree, passed by the learned First Appellate Court and the judgment and decree, passed by the learned trial Court, may kindly be restored.

21. Per contra, Mr. G.D. Verma, Senior Advocate, assisted by Mr. Sumit Sharma, Advocate has opposed the said prayer on the ground that this Court, under Section 100 CPC, cannot interfere with the findings of facts, until and unless, it has been held that findings of the learned First Appellate Court are suffering from perversity. Supporting the judgment, passed by the learned First Appellate Court, a prayer has been made to dismiss the appeal.

22. The present appeal has been admitted on the following substantial questions of law:

"1. Whether the lower Appellate Court has exceeded its jurisdiction in acting in a highly erroneous and perverse manner in presuming the oral sale in favour of the defendants without specifying the time when the alleged oral sale took place Could the factum of oral sale be presumed on the basis of the entries in the revenue records when the change of possession was not proved to be lawful or in accordance with law

2. Whether the findings of the Lower Appellate Court on issue No. 1(b) are based on no evidence and are the result of essentially wrong approach not only of the facts but also of law"

23. In this case, the learned First Appellate Court has framed two additional issues, which have been reproduced above. Issue No. 1(a) has been decided against the defendants, whereas, while deciding issue No. 1(b), the learned First Appellate Court has held that defendants have proved their adverse possession, over the suit land. Admittedly, the findings of the learned First Appellate Court, on issue No. 1(a), have not been assailed by the defendants, by filing appeal or by filing Cross- Objections, under Order 41 Rule 22 CPC.

24. While deciding issue No. 1(b), the learned First Appellate Court has recorded the statement of AW-1 Smt. Darshna Kaushal, w/o Devi Ram. She has filed her affidavit, Ext. CA, in which, she has asserted that her brother Ratti Ram, the Predecessor-in-Interest of the defendants had purchased 6 bighas 9 biswas of land from Laari Sahiba (mother of the plaintiffs) for the sale consideration of Rs. 800/-. According to her, her brother came into possession of the suit land, as owner.

25. In the cross-examination, this witness has admitted that no document, regarding sale was prepared, in her presence, but, voluntarily stated that money was paid. The payment was stated to be made in the presence of Ishwar Dutt, this witness and her husband Devi Ram. She has further deposed that Laari Sahiba had sold her entire land to different persons. Some land, alongwith building, was sold to Shri Ishwar Dutt. She has further deposed that when, the possession was delivered, Patwari was not present there. No tatima was prepared. According to her further version, Laari Sahiba was residing at Solan. She has further admitted that in those days, some residents of their area, used to buy the land, through sale deeds. When, the possession was handed over to the defendants, the suit land was un-cultivable. Thereafter, Ratti Ram had planted the fruit bearing trees, on the suit land.

26. Sher Singh, S/o Bija Ram has also been examined by the appellants, as AW-2. This witness, in the examination-in-chief, has deposed that the land, measuring 6 bighas, some biswas, approximately, 2 ½ bighas was irrigated land and 3 bighas land was Banjar. According to him, the same is in possession of the plaintiffs, for the last so many years. However, approximately, 30-32 years ago, Halqua Patwari, visited the suit land, in order to record the Khasra Girdawari, then, this witness came to know that possession of Ratti Ram is on account of purchasing the land. Ratti Ram has disclosed to this witness that he has purchased some land from Laari Sahiba, mother of the plaintiffs and the villagers consider the defendants to be the owners of the suit land, on account of purchase. According to him, Ratti Ram had disclosed to him that he has purchased the land, in the year 1963.

27. A suggestion was put to this witness that Laari Sahiba had raised orchard over her entire holding, which he has denied. He has stated that no orchard is there over the suit land, however, trees were there, which were being used for fuel and timber. He has further admitted that Laari Sahiba did not have any dispute, with any of the persons, to whom, she has sold the land, except the present one. He has also admitted that he heard that Laari Sahiba had sold the suit land to Ratti Ram. This fact has been heard by him from Krishan Dutt, Jagdish Pandit, his son Prem Dutt and Nand Lal. All these persons are stated to be alive. Ishwar Dutt had also purchased the land from Laari Sahiba.

28. To rebut this evidence, respondents/plaintiffs have examined RW-1 Chint Ram Sharma, R/o village Gayee Ghat. According to him, there is orchard over the suit land and the suit land was not transferred to Ratti Ram or Om Prakash. This fact has been deposed by this witness being Lambardar of the village. According to him, about seven years ago, from the date, when, he appeared in the witness box, a wrongful occupation has led to litigation. He has deposed that Ratti Ram and Om Prakash were never inducted as tenants.

29. In his cross-examination, this witness has deposed that one Shamsher Singh (since deceased) was Lambardar of village Datyar. This witness used to visit Laari Sahiba frequently.

30. The evidence, which has been adduced by the parties, before the learned trial Court, is also liable to be discussed, in order to decide the above substantial questions of law.

31. After framing of issues, plaintiff No. 1 Hemender Singh appeared as PW-1 and deposed that earlier, his mother Krishna Devi was owner of the suit land. She had expired in the year 1982 and now, the suit land is in possession of this witness. He has deposed that the plaintiffs have not handed over the possession of the suit land to anyone. Ratti Ram never came in the possession of the suit land. He has further deposed that his mother has not sold the land to any one, nor any one has been inducted as tenant. As such, in the year 1995-96, the defendants have made an attempt to take the possession.

31.1. According to the further deposition of this witness, defendants have no concern whatsoever with the suit land. Defendants have also filed the suit against them. He has deposed that his brother was serving at Shimla. In the revenue record, wrong revenue entries are stated to have been made in the absence of the plaintiffs. He has further deposed that they came to know about this fact in the year 1995-96.

31.2. In the cross-examination, this witness has deposed that Krishna Devi expired, in the month of July, 1982. Prior to her death, she was having 200-300 bighas of land, in her name. After death, mutation of inheritance was sanctioned. He has denied that they were not present, at the time of sanctioning of mutation. He has deposed that name of Devender Singh has wrongly been entered, in the revenue record. As such, his name has been corrected as Virender Singh. He was expired on 11.1.1999. According to his further deposition, he was serving in the High Court of H.P. He could not disclose about the crop, sown in the suit land.

31.3. According to this witness, entry of sale has been entered in the revenue record in the year 1960-61. As per his further deposition, during her lifetime, his mother has sold the land, which was in her possession, to Ishwar Dutt and others. He has denied that the suit land was in possession of Ratti Ram, from the year 1963. Suggestion with regard to oral sale has also been denied by him. He has denied that from the year 1963, after purchasing the land, Ratti Ram, as well as, his family members, are in possession of the suit land. However, he has admitted that plaintiffs and other villagers are aware about their possession.

32. PW-2 is Gian Chand Patwari. He has deposed that the suit land is owned by the plaintiffs. Devender Singh is stated to have expired and the mutation, regarding his inheritance, has also been sanctioned, on 21.1.1999. As per Jamabandi for the year 1957-58, Krishna Devi was owner in possession of the suit land. Same entry has been recorded in the Jamabandi for the year 1965-66. As per record, no report regarding the change in the possession has been entered in the Rojnamcha. He has further deposed that oral sale cannot be executed. He has voluntarily stated that now, the same is not permissible.

32.1. In the cross-examination, this witness has admitted that in the year 1960-61, there is entry made with the help of pencil, mentioning the name of Ratti Ram as "Gair Marusi", and in the column of remarks, there is reference, regarding khasra Nos. 521, 522, 525, 526, 527 and 524. He has admitted that as per the record, Rapat No. 57, dated 15.10.1963, has been recorded with the help of pencil. According to him, vide said entry, the land of Krishna Devi has been entered in the name of Nand Lal, Lakshmi Dutt and Kali Ram. He has admitted that name of Ratti Ram has been recorded on the basis of Pencili Indraj, in the year 1960-61. He has admitted that due to change in the girdawari, these khasra Nos. have been mentioned in rapat No. 57. Thereafter, the same were verified by the Kanungo. He has admitted the possession of Om Prakash, by saying that he has sown the crop over the suit land. According to him, change, which was found on the spot, was allegedly entered in the revenue record by making Pencili Indraj. Thereafter, the same was verified by the Kanungo and when, the change was found to be correct, then, the same was entered in the revenue record.

33. PW-3 is Radha Krishan. He has asserted the possession of Krishna Devi. He has deposed that mother of the plaintiffs never sold the land to Om Prakash and Ratti Ram. This witness has deposed that he had visited the village in the year 1947-48.

34. To rebut this evidence, defendant No. 4 Hari Krishan has appeared in the witness box, as DW-1. He has deposed that the suit land was purchased by his father from Laari Sahiba, for a sum of Rs. 800/- and the writing, which was made, has been destroyed due to the damage to their home, 15-17 years ago. On the basis of sale, Khasra Girdawari is stated to have changed in their favour, in the year 1963.

34.1. This witness has further deposed that after purchase, the defendants are owners in possession of the suit land. He has asserted the ingredients of adverse possession to show that their possession is open, peaceful and being owners, they are having knowledge of the same. He has further deposed that after purchase of the land, they have not considered Krishna Devi, as owner of the suit land.

34.2. According to this witness, if it is assumed that the sale deed was not executed, then, on the basis of oral sale and on the basis of 'Parcha Yadasht', they have become owners of the suit land, on account of their adverse possession.

34.3. This witness has admitted that alongwith written statement, they have not annexed any document regarding purchase. He has voluntarily stated that the fact that the document regarding sale of the land was damaged due to reason, has been deposed by him, in the examination-in-chief. He has denied the suggestion that revenue entry has been made with the connivance of the Patwari and Tehsildar. This witness has admitted that while preparing the written statement, the factum of purchase of the suit land, for a sum of Rs. 800/-, has been apprised to him. He has denied that in the year 1995-96, they have made an attempt to forcibly enter in the suit land.

35. DW-2 is Bishan Dutt. He has deposed that the suit land was in the possession of Ratti Ram and now his sons (defendants) are in possession of the same. He has deposed that Ratti Ram had purchased the suit land from the mother of the plaintiffs. After sale, Ratti Ram remained in possession of the suit land. He has denied that the suit land is being cultivated by the plaintiffs.

35.1. According to him, mother of the plaintiffs, as well as, defendant Ratti Ram had disclosed about the factum of sale to him. However, it has not been disclosed to him by the above persons as to who were the witnesses to the documents, by virtue of which, the suit land was allegedly sold.

35.2. As per the further deposition of this witness, the sale deed was required for purchase of the land, in those days, but, voluntarily stated that earlier, there was no such requirement. He has further deposed that Ratti Ram and mother of the plaintiffs, disclosed about the factum of sale, which had taken place in the year 1962-63.

36. DW-3 is Kali Ram. He has deposed about the possession of the defendants over the suit land, for the last 35-40 years. According to him, the suit land was purchased by Ratti Ram, predecessor in interest of the defendants, from the predecessor in interest of the plaintiffs, for a sum of Rs. 800/-.

36.1. According to his deposition, this fact was disclosed to him by the mother of the plaintiffs. After purchase of the suit land, mother of the plaintiffs was never considered as owner of the suit land. According to this witness, land, which he has purchased, sale deed of the same was executed at Solan. He has deposed that the land measuring 8 bighas was purchased for a sum of Rs. 1300/-. He has voluntarily stated that Ratti Ram had purchased the land, prior to him. However, according to him, he is not aware about the fact as to whether the sale deed, qua the suit land, was executed or not. He has purchased the land in the year 1965. He has denied rest of the suggestions, put to him, by the learned counsel for the plaintiffs.

37. DW-4 is Sukh Dei. She has also supported the case of the defendants by deposing that defendants are considered to be the owners in possession of the suit land. Ratti Ram has purchased the land from Krishna Devi. The suit land was not sold in her presence and she has simply heard about it. This witness has purchased the suit land from the mother of the plaintiffs. They were tenants over the suit land. Like other DWs, she has also deposed that factum of same has been disclosed to her by mother of the plaintiffs and the predecessor in interest of the defendants. Rest of the suggestions have been denied by her.

38. In this case, the learned trial Court has negated the plea of sale, as well as, adverse possession and granted decree of declaration in favour of the plaintiffs by declaring the possession of the defendants over the suit land, as unauthorized, and plaintiffs were held entitled for the decree of possession. Whereas, the learned First Appellate Court, on the basis of evidence, so adduced, before it, has although, negated the plea of sale, as taken by the defendants, but dismissed the suit of the plaintiffs, on the ground that possession of the defendants, over the suit land had ripened into ownership, by way of adverse possession.

39. A specific stand taken by the plaintiffs, in this case, is that they are owners in possession of the suit land and they have challenged the entry of "Bila Lagan Bawajah Bai", in the column of possession. The plaintiffs have also sought relief of possession. This plea of the plaintiffs have been contested by the defendants, asserting their possession, on the basis of some oral sale. Admittedly, in the pleadings, no date of alleged oral sale has been mentioned, nor its terms and conditions, have been narrated.

40. In para-6 of the written statement, the defendants have asserted their adverse possession, by pleading the following facts:

"6. That contents of para-6 are wrong, hence denied. It is denied that plaintiffs have no right, title or interest over suit land in any capacity, as alleged. The defendants are owners in possession of suit land on account of oral purchase. In case for any reasons the Hon'ble Court come to conclusion that oral sale is defective or does not confer any title on the defendants even then, in alternate, the defendants and their father had been possessing the land for last more than 33-34 years approximately, as owners, openly, peacefully, continuously, without any construction or hindrance from any corner to the knowledge or plaintiffs and their predecessors in interest, as the defendants and their father had been claiming land as owners, the plaintiffs and their predecessors in interest have due knowledge that defendants etc. are not admitting ownership of any one else and as such the possession of the defendants is hostile to plaintiffs and their predecessor in interest and as such, the defendants have become owners of the suit land by way of adverse possession also."

41. The plea of adverse possession is always available against the true owner. The oral sale, admittedly, in this case, has not been proved by the defendants. In that eventuality, the futile attempt of the defendants to prove oral sale by examining AW-1 Darshna Kaushal, would not help the case of the defendants, as this witness has also not given the date, month and year of the alleged oral sale, but, simply stated that mother of the plaintiffs had sold the land, for sum of Rs. 800/-.

42. Admittedly, this fact is beyond the pleadings of the defendants. A fact, which is beyond pleadings, is liable to be ignored, as no efforts have been made by the defendants to get their pleadings amended, by asserting that the subject matter of the lis was sold by the mother of the plaintiffs, for a sum of Rs. 800/-.

43. Since, deposition of the witnesses qua the sale consideration of Rs. 800/- is beyond pleadings, as such, the same is not liable to be taken into consideration.

44. The defendants have taken the contradictory stand in this case. Firstly, they have taken the plea of oral sale and on the other hand, they have taken the plea of adverse possession. The pleadings are totally silent about the fact as to whether any document was executed regarding the sale. In the written statement, they have simply asserted the fact that on the basis of oral sale, the possession was allegedly handed over to them, by the predecessor in interest of the plaintiffs.

45. Interestingly, when, defendant No. 4 Hari Kishan appeared in the witness box, as DW-1, he has tried to introduce a new case that the suit land was purchased by his father, for a sum of Rs. 800/- and writing, in this regard, was made, however, the same has been destroyed, due to damages to their house. This evidence is also beyond pleadings. This witness is not sure to claim the ownership of the suit land, either on the basis of sale, or on the basis of adverse possession. As such, the plea of adverse possession, is not liable to be accepted.

46. The learned First Appellate Court has given undue advantage to the fact that possession of the defendants has been proved over the suit land. Merely, the possession over the suit land, is with the defendants, does not ipso-facto prove the plea of adverse possession, unless the ingredients of adverse possession have been pleaded and proved.

47. On the one hand, defendants are taking the plea of title on the basis of oral sale, which has not been proved, in this case, and on the other hand, plaintiffs have taken the plea of adverse possession.

48. In this case, the plea of title has not been proved. As such, burden is heavy upon the defendants to prove the plea of adverse possession. While holding so, the view of this Court is being guided by the Hon'ble Supreme Court in a case titled as, "L.N. Aswathama & ors. Vs. P. Prakash', reported in (2009) 13 SCC 229. Relevant paragraph-25 of the judgment is reproduced as under:

"25. When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted possession for 12 years. In this case we have already held that he did not make out such possession for 12 years prior to the suit. While the plaintiffs have made out a clear and absolute title of the property, the defendant has not been able to make out title or adverse possession for more than 12 years. The High Court did not examine any of these aspects and by a cursory judgment, reversed the well considered judgment of the trial Court. Therefore, the decision of High Court cannot be sustained."

49. This view has again been reiterated by a three judges Bench of Hon'ble Supreme Court in a case titled as, "Narasamma & others versus A. Krishnappa", reported in AIR 2020 SC 4178, in which, it has been held that plea of title and adverse possession are contradictory pleas, which are not permissible to be taken by the parties. Relevant paras 31 to 33 are reproduced, as under:

31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e., whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned counsel for the respondent herein, which succinctly set forth the legal position.

32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced...."

33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs., which observed in para 4 as under:

"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

50. In Narsamma's case (supra), the Hon'ble Supreme Court has given the ingredients to constitute adverse possession. Relevant paras-30 and 37 of the judgment, are reproduced as under:

"30. We also find that the reliance placed by learned counsel for the appellants in Ravinder Kaur Grewal & Ors. is also misplaced. The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge.

Xxx xxx xxx

37. We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr. dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time."

51. In view of above, this Court is of the view that the findings of the learned First Appellate Court are not based upon the evidence, as defendants have taken the destructive pleas, i.e. title, by way of oral sale, as well as, adverse possession and plea of adverse possession, that too, without placing on record the documents, by virtue of which, they allegedly came into possession.

52. At the cost of repetition, non-filing of appeal or cross objections, against issue No. 1(a) also dis- entitles the defendants to take the plea of adverse possession.

53. No other point has been urged or argued.

54. Accordingly, the substantial questions of law are decided in favour of the appellants/plaintiffs, and against the respondents-defendants.

55. Considering all the facts, this Court is of the view that findings of the learned First Appellate Court do not pass the judicial scrutiny of this Court and the same falls within the definition of 'perverse findings', being not based upon the evidence. As such, the findings of the learned First Appellate Court are liable to be reversed, by setting aside the judgment and decree, passed by the learned First Appellate Court and findings of the learned trial Court are liable to be restored.

56. In view of above, the appeal is allowed and the judgment and decree, passed by the learned First Appellate Court are set aside and the judgment and decree, passed by the learned trial Court, are restored.

57. Decree-sheet be prepared accordingly.

58. The pending application(s), if any, are also disposed of.

59. Record be sent down.